American Judges Association
Date of this Version
Court Review - Volume 57
If you were to ask legal readers to rate the value of intuition in deciding close cases, I suspect that most of them would not put it toward the top of their list. Surely that would be true for self-described textualist judges, who would probably give it only a slim role, if it has any at all. They prefer to concentrate on words and syntax and context (verbal context, not situational context) and to weigh all the cues and clues. Intuition is just too squishy, subjective, unconstraining, and prone to manipulation (as if textualism were not1).
At any rate, I’ve done a little experiment that tries to gauge the weight that readers give to intuitive reasons for a United States Supreme Court decision. Obviously, I can’t poll the justices; I can only report on readers’ assessments of the points they made. I don’t claim that the study is earthshaking, conclusive, empirically beyond reproach (for one thing, the sample size is small), or able to be generalized to all cases. I claim only that the results are striking enough that they ought to give pause to those who would discount the significance of a judge’s reasoned intuition about statutory purpose and sensible results.
Used by permission.